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Regier v. Good Samaritan Hospital9/20/2002
NATURE OF CASE
Lorie Regier (Regier), the guardian and conservator of Adrian R. Regier (Adrian), appeals from the order of the district court for Buffalo County which sustained the demurrer of John Finkner, M.D., and dismissed Regier's cause of action against Finkner without leave to replead. We reverse.
STATEMENT OF FACTS
On January 8, 2001, Regier filed a petition against various defendants, including Finkner. This appeal is limited to the dismissal of Regier's cause of action against Finkner, without leave to replead. We summarize the facts alleged by Regier in her petition. Adrian was born on July 6, 1980, and lives in Perkins County, Nebraska. Regier is Adrian's mother. On September 26, 1997, Adrian sustained a concussion while playing high school football. He was taken from the field to the Community Hospital in McCook, Nebraska, where he was admitted to the emergency room at approximately 9:45 p.m. and treated by Corrine Phillips-Ward, M.D., and Elizabeth Edwards, M.D. At approximately 11:45 p.m., Phillips-Ward contacted the Good Samaritan Hospital (Good Samaritan) in Kearney, Nebraska, and spoke with Finkner. Good Samaritan is a "'regional referral center'" and has "specialized capabilities," including helicopter ambulance service, a shock-trauma unit, and neurosurgery expertise. Although paragraph 10 of the petition alleges that Finkner is an employee of the "Community Hospital," given the remaining allegations in the petition and the parties' briefs, we understand this statement to be an allegation that Finkner is an employee of Good Samaritan. It is alleged that notwithstanding the fact that Good Samaritan had the specialized capabilities or facilities needed by Adrian and the "'capacity'" to treat Adrian, upon receiving the call from Phillips-Ward, Finkner refused to accept Adrian's transfer from the Community Hospital to Good Samaritan. There is no suggestion in the petition that in this telephone call, Finkner said anything of medical substance. Adrian was not taken to Good Samaritan.
Sometime after 3:45 a.m. on September 27, 1997, Adrian was transferred to Lincoln General Hospital in Lincoln, Nebraska. Upon arrival, his intracranial pressure was measured at 60. A CAT scan of his head revealed severe cerebral edema due to his head injury. Despite efforts by the medical staff at Lincoln General Hospital to relieve Adrian's intracranial pressure by controlled ventilation and intermittent mannitol, Adrian did not make significant neurological improvement and sustained severe traumatic brain injury.
With respect to Finkner, the petition alleges, inter alia, that Finkner's refusal to accept the transfer of Adrian was in violation of Good Samaritan's hospital standards, bylaws, rules, and regulations regarding the acceptance of transfer patients and that it also violated the general industry standard regarding the acceptance of transferee patients. The petition does not recite or suggest the substance of the standards, bylaws, rules, and regulations or that Finkner had agreed to adhere to them.
On February 12, 2001, Finkner filed a demurrer claiming, inter alia, that the petition failed to state a cause of action against him. On March 19, the district court held a hearing on Finkner's demurrer. In an order dated May 7, the district court sustained Finkner's demurrer. The district court stated that Finkner had not been an attending physician for Adrian and that "no physician-patient relationship ha been or could be alleged." The district court concluded that Finkner had no liability to Adrian, because Adrian had never been received by or entered into Good Samaritan for treatment. Based upon these determinations, the district court
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